Citation Nr: 0603737
Decision Date: 02/08/06 Archive Date: 02/22/06
DOCKET NO. 96-23 729A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to service connection for chronic obstructive
pulmonary disease (COPD) due to nicotine dependence.
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Counsel
INTRODUCTION
The veteran had active service from March 10, 1948 to March
9, 1951. He also had a period of unrecognized service from
March 10, 1951 to April 6, 1954.
Initially, the Board of Veterans' Appeals (Board) notes that
it remanded the remaining issue on appeal in May 2004, and
that the action requested in its remand has been accomplished
to the extent possible. This case is now ready for further
appellate review.
FINDING OF FACT
COPD has been related to nicotine dependence that began
during active service.
CONCLUSION OF LAW
COPD is secondary to service-connected nicotine dependence.
38 U.S.C.A. §§ 1110, 1131 (West 2002); § 38 C.F.R. § 3.310(a)
(2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Background
At the outset, the Board notes that this matter has been
sufficiently developed pursuant to the guidelines established
in the Veterans Claims Assistance Act of 2000, 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005) (VCAA),
and that since the Board has determined that the evidence
supports a grant of the benefits sought, any lack of notice
and/or development under the VCAA cannot be considered
prejudicial to the veteran.
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002).
Disability which is proximately due to or the result of a
service-connected disease or injury shall be service
connected. 38 C.F.R. § 3.310(a) (2005).
There are no service medical records that document in-service
complaints or treatment relating to any respiratory disorder.
However, an October 1999 private medical record from
psychologist, Dr. M., provides a diagnosis of nicotine
dependence as specified in Diagnostic and Statistical Manual
for Mental Disorders (DSM-IV).
A private physician, Dr. G., also noted in a January 2003
statement that the veteran had been his patient since January
1999, that the veteran presented with significant obstructive
lung disease associated with intermittent bronchospasm and
bronchitis, that the veteran had a significant history of
cigarette use (2 packs per day (PPD) x 50 years), and that
this no doubt was a major contributing factor in regard to
his obstructive lung disease.
Moreover, VA mental disorders examination in May 2005
revealed that the examiner reviewed the veteran's claims file
prior to the examination. The veteran reported that he began
smoking in 1948, at boot camp in South Carolina. At that
time, he stated that he would smoke 4 cigarettes at a time,
and that his craving increased such that when he went to
Korea in 1950 or 1951, he was smoking two PPD. The veteran
indicated that he had tried to quit smoking at least a half a
dozen times in the past 5 years, and as long ago as 1970,
when the first patch came out. He stated that he did not
want to smoke and thought he was wasting a lot of money. The
longest he had gone without smoking was about 21 days when he
was hospitalized about three months ago. The Axis I
diagnosis was nicotine dependence. The examiner commented
that he believed that the veteran was nicotine dependent, and
that this dependence began in the military between 1948 and
1951. The frequency, severity, and duration of symptoms were
as noted above. The examiner also did not find evidence of
another psychiatric disorder.
The veteran also underwent VA respiratory examination in June
2005, at which time this examiner also reviewed the veteran's
claims file in conjunction with the examination. The
examiner noted the veteran's report that he began smoking
cigarettes in the military, and that he subsequently
developed the habit of smoking two packs per day in the
military that continued for the next 50 years. In 1999, the
veteran noted that Dr. G. diagnosed COPD, which Dr. G.
believed was the result of his long-term smoking history.
Currently, the veteran smoked six cigarettes a day. He
complained of daily wheezing, which was a chronic daily
cough, and dyspnea on exertion after walking 100 feet. He
had been treated for two respiratory infections over the past
year for a period of 7 days. The veteran was currently on
Advair, oral Diskus, Atrovent, Combivent, and a home updraft
machine, which he used on a daily basis.
Physical examination of the lungs revealed scattered
expiratory wheezes. The review of the claims file was noted
to revealed Dr. G.'s diagnosis of COPD. The diagnosis was
COPD secondary to long-term cigarette smoking history. This
examiner commented that it would be pure speculation to state
that smoking while in service caused the veteran's COPD. The
examiner found no objective clinical evidence of nicotine
dependence, during the military or over the years based on
the DSM criteria for nicotine dependence and the veteran's
history. Therefore, the examiner concluded that it would be
pure speculation that the veteran continued smoking over the
years as a result of cigarette usage while in the military.
II. Analysis
The Board has carefully reviewed the record and notes that it
clearly demonstrates a current diagnosis of COPD.
The Board also finds that despite the fact that the only
evidence of in-service cigarette use as described by the
veteran is based on the statements and testimony of the
veteran, there is no evidence that contradicts this evidence.
The Board also notes that there are multiple witness
statements that indicate that the veteran did not smoke prior
to entering service.
Thus, the Board will further conclude that the veteran did,
in fact, begin and continue smoking during service as
asserted by the veteran.
In addition, however, the Board must also find that the
evidence is sufficient to link nicotine dependence to
service, and then further find that the veteran's COPD is
related to smoking. In this regard, while the Board
recognizes that the June 2005 VA respiratory examiner did not
find nicotine dependence, this is a psychiatric
determination, and the May 2005 VA mental disorders examiner
unequivocally opined that the veteran was nicotine dependent,
and that this dependence began in the military between 1948
and 1951. There is also a previous private medical statement
from the veteran's psychologist, Dr. M., dated in October
1999, which provides a diagnosis of nicotine dependence as
specified in DSM-IV. Therefore, as the medical evidence is
at least in equipoise in this regard, the Board will find
that the veteran's nicotine dependence is related to service.
As the VA respiratory examiner did conclude that the
veteran's COPD was secondary to long-term cigarette smoking
history, the Board also finds that the veteran's COPD has
been related by competent medical evidence to his nicotine
dependence. Accordingly, the Board finds that service
connection for COPD as secondary to the veteran's service-
connected nicotine dependence is therefore warranted.
38 C.F.R. § 3.310(a).
ORDER
The claim for service connection for COPD as secondary to
nicotine dependence is granted.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs